COVER STORY Don't worry, you'll be fine. Or will you be fined?

by Terri M. Kelleher

News Weekly, July 18, 2015

Concern that those of faith might suffer legal consequences if they continue to oppose same-sex marriage following a change in the law is well founded.

Australian Marriage Equality director Rodney Croome says he has written to all Catholic Education Offices around Australia urging them not to distribute the Australian bishops’ booklet, Don’t Mess with Marriage. Mr Croome says in a media release on June 18 that the booklet “likely breaches the Anti-Discrimination Act” and he “urge[s] everyone who finds it offensive and inappropriate, including teachers, parents and students, to complain to the Anti-Discrimination Commissioner, Robin Banks.”

So much for free speech and freedom of religion if a statement of the Church’s teaching on marriage cannot be distributed in Catholic schools. And that is without any law allowing same-sex marriage.

Where same-sex marriage has been legislated there are many examples of business owners being prosecuted and fined and in some cases losing their business for declining to provide services for a same-sex wedding. See the AFA’s pamphlet, Businesses are being fined over same-gender weddings, available online.

Australian Human Rights Commissioner Tim Wilson says that there is no need for there to be a clash between allowing same-sex couples to marry and protection of the right to religious freedom. He proposes that marriage can be redefined to allow two people of the same sex to marry without breaching freedom of religion by separating the civil and religious traditions of marriage and treating them equally in law. (“Defend Religious Freedom”, The Australian, July 6, 2015).

But the civil and religious traditions of marriage since time immemorial have been consistent in understanding marriage as the union of a man and a woman. Not until the last decade of the 20th century was the proposition in any way seriously put forward that marriage could be anything other than that – that it could include the union of two men or two women.

Thus the onus is on those pushing to change marriage to show why it should be changed and that the rights of all others are protected.

Mr Wilson’s proposal is that businesses should have to choose either to service what he calls “civil marriages” or “religious marriages”. This is a false dichotomy. The distinction is between man-woman marriages, which are all civil marriages whether there is a religious ceremony or not, and same-sex couple marriages. Mr Wilson is proposing legislation that would deprive wedding businesses of the custom of opposite-sex couples who are not having a religious ceremony. They would not have any objection for providing for an opposite-sex couple’s wedding even if they did not have a religious ceremony.

It is also a false dichotomy as the proposal does not seem to take into account those same-sex couples who may wish to have a religious ceremony. Would this be a religious or a civil marriage?

Mr Wilson says: “By separating civil and religious marriage we can design a law that removes the risk that anyone’s religious freedom need be violated, … the law would simply require that any wedding service provider announces up-front the marriage tradition or traditions for which they provide services.”

It is almost incomprehensible that a Liberal Party member such as Mr Wilson can seriously propose that free enterprise for businesses where the owners cannot agree with same-sex couples marrying should be curtailed by having to announce publicly which weddings they will provide services for and thereby be restricted to providing services only for those weddings that they nominate.

He says, rather unsympathetically: “So a florist could advertise that they only spruce up Sikh weddings. But, if that is what they advertise, that is all they can do.” And: “if a person believes marriage is a religious tradition they have to accept that the market will be narrowed for them to fulfil the purity of their conscience, unless they want to fall foul of anti-discrimination law.”

So to protect their freedom of conscience business owners would risk seriously curtailing their businesses.

Further, many churches and faith-based schools have facilities such as halls and kitchens and of course the church building itself, which may be very much desired as a backdrop for wedding photos. They too would continue to be at risk of prosecution if they declined to make these facilities available for same-sex wedding celebrations if the same-sex couple wanted a religious marriage.

Shaping the debate around marriage as a religious versus civil tradition marginalises people of religious tradition. It looks like pandering to mere sensitivities. But for individual business owners the issue is conscience; and conscience is beyond any religious tradition.

Although a business owner’s conscience against the marriage of a same-sex couple may be grounded in religious belief, there will be business owners that have a secular outlook and whose conscience dictates that they will not provide services for a same-sex couple’s wedding. This outlook could be grounded in a cultural rather than a religious perspective. There are many cultural groups in Australia that do not believe that two people of the same sex can or should marry – Aboriginal, Chinese, Vietnamese, Korean, Thai.

If Mr Wilson believes that religious freedom can easily be protected by providing for civil and religious marriages, the 30 GLBT, human rights and legal lobby groups that called on the 2012 inquiry into the consolidation of all federal anti-discrimination laws to allow no exemptions for, or draconian restrictions on, churches, schools and faith-based community groups, let alone businesses, would not agree.